On Health Care and the Constitution: The Florida Suit Moves Ahead

When last we checked in on the issue of the constitution and the big health-care law, passed back in March, we heard Justice Stephen Breyer say that he thought constitutional challenges to the law would likely end up in the lap of the U.S. Supreme Court.

Since the passage of the bill, a dozen or so lawsuits challenging its constitutionality have been filed. But according to the NYT, the one with perhaps the best chance of sustaining early challenges and climbing all the way to the high court is the one filed in Pensacola, Fla., shortly after President Obama signed the bill into law. Click here for all LB coverage of the Constitution and the health-care law.

According to the NYT, some legal scholars, some of them left-leaners, believe the states’ lawsuit presents a “credible theory” for knocking the bill down.

The question: whether Congress can regulate inactivity — in this case by levying a tax penalty on those who do not obtain health insurance.

The focus of the litigation is, as we’ve written, the Commerce Clause, the portion in Article I that allows Congress to regulate interstate commerce. The question, of course: Does the Commerce Clause grant to Congress the power to levy a tax on someone who fails to do something.

Other experts, however, argue that the law falls squarely into Supreme Court precedent.

The bill’s sponsor, Florida AG Bill McCollum, said he focused in on the constitutionality of the mandate last September, after reading this WSJ column by Baker Hostetler’s Lee Rivkin David Casey, whom McCollum ultimately brought on board to run the file the suit.

According to the NYT story, the states have hired Rivkin and Casey under a contract that restricts their fees to $50,000 this year. The lawyers agreed to reduce their hourly rate to $250, from $950.

The Justice Department said it would “vigorously defend” the cases. “We are confident that this statute is constitutional and that we will prevail,” said Tracy Schmaler, a department spokeswoman.

The judge in Pensacola, Roger Vinson, has scheduled oral arguments for Sept. 14 on the Justice Department’s anticipated motion to dismiss the case. From there, the case would go to the 11th Circuit, headquartered in Atlanta, before moving to the U.S. Supreme Court.

About Law Blog

The Law Blog covers the legal arena’s hot cases, emerging trends and big personalities. It’s brought to you by lead writer Jacob Gershman with contributions from across The Wall Street Journal’s staff. Jacob comes here after more than half a decade covering the bare-knuckle politics of New York State. His inside-the-room reporting left him steeped in legal and regulatory issues that continue to grab headlines.

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